Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-05-19
TIE SUPREME COURT.

=
r. Z. Gaines, associate justices; G. S. Morse
clerk; NJ. NJ. johnson, bailiff.
International and Great Northern Rail-
road VS.. W. P. Hughes, from Medina
county; opinion by Stayton, A. j. This
: appeal is taken from judgment rendered
in q suit below, giving damages for inju-
ries to mare, which was frightened by
appellants cars and ran upon a trestle,
whereby the damage was done. The
charge of the court below was to the
effect that e railway company, under the
laws of this state, is liable for injury
caused otherwise than by contact and
without fault of the company, etc, pro-
vided the road is not fenced The de-
cision of the whole question hinges
on the construction of the statute setting
forth the liability of the railroad com
pany. II reads that il shall be liable sfor
the value Of all stock killed or injured by
the locomotive and cars OF such railroad
company in running over their respective
railways, etc" 1t does not include
injuries caused by contact when the train
is standing still, but it means damage
done in running, and involves the idea of
contact and not injury resulting in an
indirect manner. The statutes of Indiana,
| Missouri and Illinois are very similar to
our statutes, and the decisions
IN those states are to
the effect that there must be actual con-
tact. The statute Of Kansas includes IN
| juries "by the engine or cars on such
railways or in any other manner whatever
in operating such railways" provided
there is no fence. The statute of Iowa
! is similar, and it is very easily seen how,
| in nnncfruiuo cfarnfaG or+uoI
tact is not necessary, as the language is
! broad and sweeping, and the decisions
| under them are not applicable
to cases in this state. We
do not intend to say that actual
collision is always necessary for recovery
in this state, as it may result from negli-
gence, but in such case il would not be
based on the statute and the proof OF
negligence must come from the party al
leging it. In the present case there is no
such proof, and the charge asked
was apt to mislead the jury. The iudg-
ment is reversed and the cause re-
handed
James Jackson VS.. Anna Lucy Cassidy,
from Travis; opinion by Willie, G. j.,
Games, A. j., not sitting. This suit arose
out of loan by the Austin Home Build |
ing and Loan Association TO appellee, one
of its members. Loans were made to |
members who bid the highest premium. |
AppeIlt had five shares at 500 each face |
value. She agreed to take 43 per cent. |
on $500 IN cash, bidding therefore a
premium OF 81 per cent. She received |
S2l5 and executed her obligation |
for $500. This $500 bore interest at |
per cent. per annum, paid monthly. |
She had also to pay S per month on each |
of her shares and ali fines and dues. In |
default of over six months in payment of |
dues and interest, there could be fore
closure. To secure the performance of |
this obligation she transferred her stock .
as collateral and executed deed of
trust to the land in controversy. She
paid dues, ETC., for awhile, but finally de-
faulted more than SIX months; the deed
of trust was fGreclosed and ssle made by
a deputy sheriff. AZ this time the com
pany's books showed balance due it of
S63.75. The property was sold for $50,
and was worth $3.50. The appellee
claims that the contract was usurious,
as it charged6 per cent. per annum on
$500 for loan of S215, being over II per
cent, and if it was usury, then the whole
interest is void, and appellee owed
the company nothing This is an ct
tempt to evade the usuTy law and
must not be permitted to succeed, The
point is made that because it was a cor
poratlon, and the one borrowing the
money was 8 member, it was not mere
loan, but an sdvance. With q corpora
ton, as soon as member begins to deal
with it, he is considered ia law in the
same light as one not member, and it is
the same as if he were dealing with an
other individual. In those states where
such transactions are allowed, it is a
granted privilege in the charter, and in
others the associations are not chartered,
but are mere partnerships. The company
before US is not partnership because it
is Incorporated. If the transfer of
the stock were an absolute sale it
would not be Objectionable, but in this
case appellee had to continue to pay her
dues, etc., and it was merely collateral
security. In the ordinary affairs of life
such transaction as this cannot be con-
sidered otherwise than loan that may
be collected by realizing on the securities
and it must be treated as loan or else
it would open the door for entire evasion
of the usury laws. The view that it Is
usury is supported by large number of
decisions. The vice in the sale was not
cured by the entry to the credit OF the
borrower sufficient to reduce the inter
est to II per cent per annum
The punishment cannot be evaded in this
way. That the appellant was in reality
purchaser there is no doubt, as one Nor
ris, who bid in the property, transferred
his bid to him, besides he was charged
with notice of recitals in the deed. The
deputy sheriff had no authority to make
the sale as the trust deed said it must be
the president of the association or the
sheriff, and no reason is shown why the
president did not make the sale. The
judgment is affirmed.
The Gulf, Colorado and Santa Fe Rail
road VS.. R. a Witte, from McLennan;
opinion by Gaines, A j. This was a suit
against appellant for setting fire to ap
pellee's grass, hay, ETC., by sparks from
its locomotive. In regard to proving the
exact time, the plaintiff is not confined to
that laid in his petition or declaration.
The improper language of appellee's at
torneys' complained of is shown to have
been called out by similar class of re-
marks by appellants counsel The
proper action would have been TO check
the first attorney. We would not hest
tate to revise judgment induced by
language not justified by the record, but